The Overprotection of Olympic Marks in Canada
March 28, 2009 by Jamie Goodman (IPilogue Editor)Jamie Goodman is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course.
The public domain in trademarks is composed of images, words, and phrases that cannot reasonably be granted exclusive protection because they are either generically descriptive, or because they are part of some shared cultural history. A stranger to IP would likely assume that marks associated with the Olympics would fall under the latter category, considering that the international event has been around for centuries and is premised on sportsmanship, community, and good will. In Canada, though, Olympic marks actually receive an unprecedented amount of legal protection, attaining a level of exclusivity that is beyond that of “official marks” status. With the legislation of the Olympic and Paralympic Marks Act (OPMA) in 2007, Olympic-related marks (such as the rings or the Olympic flame) are essentially as far away from the public domain as possible. While there are indeed positive benefits provided to official sponsors, the OPMA has negative consequences that run contrary to the inclusive Olympic “spirit” and to the economic incentives behind hosting the Games.
The reason that the Olympics have such tremendous marketing potential (and thus have been made exclusive through the unique legislation that is the OPMA) is because they appeal to individuals’ personal ambitions and, more importantly, to a shared sense of nationalism and pride. There seems to be something inherently undignified about monopolizing the profit-making potential of these sentiments. On the other hand, the gradual commercialization of sport places as much (if not more) emphasis on business competition as it does on the actual athletic competition, and so it makes perfect sense that the International Olympic Committee (and its Canadian trustees) is stringently protecting this marketing goldmine.
The Olympics have rightfully enjoyed official marks status in Canada since 1983, but evidently this amount of protection was not sufficient to properly defend authorized use of Olympic marks in our overly commoditized society. The International Olympic Committee (the ultimate owner of all things “Olympic”) has long recognized the marketing, sponsorship, and investment potential behind the Olympics, and as such they made the OPMA a condition precedent to Vancouver’s hosting of the Games; not surprisingly, similar legislation has already been passed in London.
The rationale behind the advanced protection is credited to the abundance of possible trademark violations that are likely to occur in a very small window of time (between now and 2010), and to curtail ambush marketing. The OPMA has therefore given the Vancouver Organizing Committee (VANOC) absolute authority and discretion in prohibiting use of the Olympic marks. Most significantly, because of the impending Olympic deadline, VANOC has been awarded a procedural pass, allowing them to issue injunctions without going through the traditional legal channels, offering those accused of violation with no opportunity to seek judicial review nor any mechanism to challenge the validity of the OPMA’s extreme limitations.
Ambush marketing is a practice that commonly occurs with major sporting events, whereby a business intentionally deceives consumers into thinking that they are official sponsors of the event and, in doing so, undermines their competitors who hold official (expensive) sponsorship titles. For example, in 2006 Lufthansa led the public to believe it was a sponsor of the Fifa World Cup by painting a soccer ball design on its airplane, even though it had no official connection to the games. Certainly, the OPMA’s expeditious injunction process will help to curtail this kind of subversive and unfair competition, but it will also greatly restrain small businesses that have no deceptive intentions and are merely trying to increase revenue by associating with a major current event.
Hosting the Olympics is an important opportunity for Canada to boost its economy through increased consumerism, yet the OPMA reserves profits only for those who can afford to pay for sponsorship titles (many of whom are multinational corporations not based in Canada). Meanwhile, Canadian businesses that cannot afford this title are required to restrain the management of their enterprises by ignoring the presence of the Olympics. Teresa Scassa (2008, “Faster, Higher, Stronger”) points out that these “super trademarks” not only restrict the ability of businesses to market themselves (which is arguably an infringement on the freedom of commercial expression), but also places restrictions on our natural instinct to identify with and embrace the massive spectacle that is taking place in our own backyard.
Although some level of trademark protection for the Olympics is necessary, the extent to which it has been legislated in Canada is concerning. While ambush marketing could certainly be characterized as unsportsmanlike conduct, so too could not letting anyone else play.
5 Responses to “The Overprotection of Olympic Marks in Canada”
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The OPMA aims to provide strong protection to official Olympic sponsors. While this is a worthwhile objective, the legislation is overbroad and denies Canadian business a chance to benefit from the Games. The statute targets numerous businesses that may not be engaged in unfair competition. Thus, despite the valuable objective of the legislation, its effect is problematic.
The primary motivation behind the legislation is to prevent ambush marketing. As Jamie aptly stated, protections against ambush marketing are certainly worthwhile. In this sense, the OPMA serves a crucial role in both protecting the official sponsor status of businesses, as well as ensuring customers are not duped in to thinking a company is an official sponsor.
A number of problems undermine the benefit of the OPMA. Firstly, many official sponsors are multi-national corporations, which are not based in Canada. The OPMA privileges these interests over small domestic companies, and reduces the capacity of Canadian business to benefit. Secondly, the OPMA leaves many small businesses vulnerable. More specifically, businesses with unregistered brands, which may touch on the terms protected by the OPMA, may be vulnerable to an injunction. For example, Olympia Pizza in Vancouver could be subject to an injunction under the OPMA; however, it is unlikely that this pizza parlor is engaging in ambush marketing. Therefore, while it is clear that there is an important objective underlying the OPMA, it’s broad scope undermines much of the benefit the legislation provides.
One of the purposes of The Olympic and Paralympics Marks Act is to prevent “ambush marketing”. Ambush marketing is where a company intentionally weakens a competitor’s official sponsorship by engaging in promotion and advertising that seeks to confuse the public as to which company really holds the official sponsorship rights. Jeremy Curthoys reviewed ambush marketing after the Sydney Olympics held in 2000 ( http://www.murdoch.edu.au/elaw/indices/title/kendall82_abstract.html) . Sydney passed the Sydney 2000 Act when it was awarded the Olympic Games to ensure the sponsors’ interests were protected from ambush marketing. This Act appears to be very similar to Bill C-47. The conclusion of his review is that the Act did not prevent ambush marketing because the strategies used were more subtle than those involving actual use of the protected insignia and already copyrighted materials. (The article describes ingenious ways which this was achieved.) Thus he states more than just legal means are required to achieve the objectives of the legislation. Perhaps this is one of the reasons why Bill C-47 offers faster, higher, stronger protection to Olympic images and language. Will this prevent ambush? It sounds like a mouse and cat game to me. The “ambush marketing” games might be more interesting to watch than the actual games.
I will agree that by themselves the terms of the Olympic and Paralympic Marks Act seem draconian. However, in my opinion the Act must be look at contextually. Expansive laws such as the Act are necessary to protect the rightful interests of sponsors. Without these sponsors it simply would not have been possible for Vancouver to host the Olympic Games. This is because the Olympics are an enormous investment. The total cost of the Vancouver Games has been estimated at approximately $1.63 billion. This bill is being footed by corporations (CTV, May 8, 2007). After pouring so much money into the Games in order to make them a reality, in my opinion these corporations have the right to expect that their legitimate financial interests be protected.
While it seems drastic to allow the Vancouver Organizing Committee to go after businesses that do not actually claim to be “official sponsors” of the Games, in reality it is necessary. Small violations add up. Eventually the distinction between sponsors and non-sponsors becomes meaningless except for the fact that sponsors sunk millions of dollars into the Olympic “brand” while non-sponsors have been allowed to free ride. For example, during the 2000 Olympics, 42% of Australians believed that Qantas was an official sponsor, although it was not. Qantas achieved this through its use of Olympic terms and imagery. By comparison, only 15% of people believed that Qantas’ direct competitor, Ansett, was an official sponsor, when in fact it was (see this article for details).
With respect to Michael Yuzdepski’s comment, does the enormous expenditure of “investment” always justify draconian laws and the usurping of the usual legal processes? We are talking about a totally commercial venture here, even if some Canadians will be forced to foot the bill for the event, so why should investors here get a legal leg up when investors in other events do not? I have not seen an argument that convinces me of the merit of this legislation, especially since little of the lexicon was invented by the IOC.
The term ‘ambush marketing” was coined by Jerry Welsh while he ran AMEX, and he did so in part to define the economic challenges the IOC places upon Host communities. Over the years the IOC twisted the term to mean the exact opposite of what Welsh intended.
The IOC recently welcomed into their fold as an Olympic sponsor a company once considered the most infamous “ambush marketer” of all time – NIKE.
I prefer the term “leverage Olympic momentum” to describe the opportunities companies in Host regions should pursue in an effort to counterbalance the high cost of living in and doing business in an Olympic region.
You can read more about the practical side of leveraging Olympic momentum in an article I wrote for the Vancouver Observer. I also covered “ambush marketing” in great detail in my book, “Leverage Olympic Momentum” published in 2006.
http://tinyurl.com/yddz3qz
The fact the Olympics is underwritten by taxes makes special Olympic legislation unconscionable, and if the IOC doesn’t address this outdated marketing method they will suffer the same consequences the music industry recently experienced and one the newspaper industry is currently going through.
Social media is not only disruptive, it provides new commercial opportunity and is also a powerful tool for contemporary marketers to protect themselves from unfair government intervention.
It should be noted all three levels of Canadian government are Olympic partners. If this doesn’t smack of an oligopoly I don’t know what does.
Here’s a link to a more detailed explanation of the process from a Vancouver marketing prospective.
http://www.area46.com/services/Creative_Olympic_Marketing.html